Rajasthan High Court - Jaipur
Kaluram Meena And Anr vs State on 18 August, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Criminal Appeal No. 1138 / 2005
1. Kaluram Meena son of Mangalram Meena
2. Jaiprakash Meena son of Mangalram Meena
Both resident of Khatipura, Boner Road, Police Station,
Malviya Nagar, Jaipur.
----Appellant
Versus
State of Rajasthan through the PP
----Respondent
_____________________________________________________
For Appellant(s) : Mr. B.M. Sharma.
For Respondent(s) : Mr. N.S. Dhakad, PP
_____________________________________________________
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Judgment / Order
18/08/2017
1. Accused-appellants Kaluram Meena and Jaiprakash
Meena have preferred this appeal to challenge the judgment dated
30.11.2005 rendered by learned Judge, Special Court (Forged
Currency Cases), Jaipur City, Jaipur, whereby the appellants have
been convicted for the offences punishable under Sections 147 &
307 IPC. They have been punished with Rigorous Imprisonment
for one year and three years respectively for the aforesaid
offences. Fine of Rs.1,000/- has also been imposed for the offence
under Section 307 IPC alongwith default imprisonment for three
months.
2. Brief facts of the case are that Lala Ram S/o Mool
Chand Meena got a parchabayan (Ex.-P/2) recorded on 25.7.1999
in Ward No.2 DE of SMS Hospital, Jaipur, wherein he stated that
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he alongwith his father Mool Chand, elder brother Gordhan Lal and
others went to sow his agricultural field which stands in the name
of his grand father. Accused Kalu and Jaiprakash alongwith other
persons namely Ramprakash, Jaiprakash, Kailash, Chhoti Lal and
Mangalram were already present there. When the complainant
party started sowing the field, the accused resisted them and
started scuffle. Ladies of the accused party pelted stones, which
hit Mool Chand and wife of Gordhan. Wife and Bhabhi of the
complainant also reached there after hearing the noise. Accused
Kalu and Jaiprakash brought country made pistol. Kalu fired, which
hit Lalaram on his chest and left hand. The fire opened by
Jaiprakash @ Lala hit wife of the complainant and his daughter. On
the aforesaid parchabayan, FIR No.300/1999 was registered for
the offence punishable under Sections 307, 147, 149, 336 IPC.
After conducting the investigation, charge-sheet for the aforesaid
offences alongwith offence under Section 325 IPC and also under
Section 3/25 of the Arms Act was filed. Charges were framed
against the accused for the aforesaid offences, which they denied
and claimed trial.
3. The prosecution got 16 witnesses examined during
trial. As many as 27 documents were also produced and 07
articles were exhibited. Accused were examined under Section 313
Cr.P.C. They denied the prosecution evidence. It was specifically
pleaded that the agricultural land was in their cultivatory
possession since beginning and also stood in the name of accused
Manglaram in the revenue record. The complainant party came to
forcibly take possession over the land and themselves started
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throwing stones, which caused injury to the accused party. The
accused persons have not caused any beating. Two witnesses
were also examined in defence evidence, in support of the claim
that the land over which the incident took place belonged to
accused side and was in their cultivatory possession.
4. During the course of trial, compromise took place
between the rival sides on which the accused persons were
acquitted of the charges under Sections 323 & 325 IPC, being
compoundable offences. Learned trial court convicted accused
Chhoti Lal and Mangla Ram for the offence under Section 147 IPC,
but extended benefit to them under Section 3 of the Probation of
Offenders Act. This appeal has been preferred only on behalf of
accused Kalu Ram and Jaiprakash @ Lala challenging their
conviction and sentence for the offences under Sections 147 & 307
IPC.
5. Learned counsel appearing for the accused-appellants
has argued that the offences aforesaid have not been proved
beyond reasonable doubt against the accused-appellants. There is
no medical evidence to the effect that the injuries sustained by
the injured persons were sufficient in the ordinary course of
nature to cause death. No injury has been caused on vital part of
the body. X-Ray plates have not been produced by the prosecution
to prove that any of the injury was grievous in nature. Even the
radiologist has not been examined to prove this fact. No ballistic
expert has been examined about the injuries allegedly caused by
the fire arm. Recovery of the country made pistol has been
allegedly made from the appellant Jaiprakash after five months of
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the incident. No recovery of any fire arm has been made from the
appellant Kalu. He, thus, submits that the prosecution has
miserably failed to prove the necessary facts beyond reasonable
doubt. He has further argued that there was no title and
possession of the complainant party over the agricultural land, on
which the incident is alleged to have taken place. In fact, the
complainant side was aggressor, who came to take possession
over the land forcibly. The accused persons exercised their right of
private defence in regard to the property in their possession and
title. It has also been stated that all the prosecution witnesses are
family members and close relatives. Their statements are not
reliable. In their effort to grab the possession over the land, they
had caused this incident and had tried to falsely implicate the
accused-persons.
6. To support the arguments advanced by him, learned
counsel for the appellants has placed reliance on the following
judgments :-
I. Kala Singh & Ors. v. State of Rajasthan, reported in
2007(1) WLC (Raj.) 145.
II. Pramod Kumar v. State of Rajasthan, reported in 1988
RCC 18.
7. Per contra, learned Public Prosecutor has vehemently
opposed the prayer. His argument is that the prosecution has
proved the charges beyond doubt against the accused-appellants.
Any lacuna or shortcoming of the investigation cannot be a ground
to acquit the accused. The documentary as well as ocular
evidence is sufficient to substantiate the charges against the
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accused-appellants. He, thus, prays that the appeal does not
deserve to be allowed and is liable to be dismissed.
8. In light of the arguments advanced, I have scanned the
judgment impugned and have examined the evidence, ocular as
well as documentary, available on record.
9. The judgment impugned is required to be examined
only to the extent of the offences punishable under Section 147 &
307 IPC, which have been found proved by the learned trial court
against accused Jaiprakash @ Lala Ram and Kalu Ram.
10. The charge for the offence under Section 307 IPC has
been framed stating that these accused-appellants caused injuries
by the fire arm (country made pistol) to Lala Ram, Pushpa Devi
and Lada with the intention to attempt their murder. So far as the
injuries of Lala Ram are concerned, perusal of his MLR Ex.-P/13
and X-Ray report Ex.-P/14 shows that four punctured lacerated
wounds were found on the right and left side of his chest, in
between left elbow and fore-arm and left abdomen in middle 1/3
part. Radio opaque shadows were also found in soft tissues. As
per PW-10 Dr. Rajesh Kumar Verma, who medically examined
these injured persons, all the injuries sustained by Lala Ram were
found simple in nature on the basis of the opinion given by
Radiologist. So far as the injuries sustained by Pushpa Devi are
concerned, as per MLR Ex.-P/11 and X-Ray report Ex.-P/12
multiple punctured lacerated wound was found at her right thigh.
As per PW-10 Dr. Rajesh Kumar Verma, the above-stated injury
sustained by Pushpa was also found simple in nature as per the
opinion given by Radiologist.
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11. In so far as the injury sustained by Lada devi is
concerned, on bare perusal of MLR Ex.-P/9 and X-Ray report
Ex.P/10 alongwith the statement given by PW-10 Dr. Rajesh
Kumar Verma, it is found that the injury of punctured lacerated
wound was found on her left cheek, which was grievous in nature.
Besides it, two simple injuries, one abrasion and one bruise were
also found. It is, thus, clear that the injuries sustained by the
injured persons in regard to whom the charge for the offence
under Section 307 IPC has been framed, were found simple in
nature except the injury sustained by Lada Devi on her left cheek.
But this grevious injury was not found on vital part of her body.
Had there been any intention of the accused-appellants to cause
such injury to the injured persons which might be sufficient in
ordinary course of nature to cause death, there was no hindrance
or restriction upon them to cause the injury on vital parts of the
body.
12. In the judgment of Kala Singh and Ors. (supra)
relied upon by learned counsel for the accused-appellants, the Co-
ordinate Bench of this court has held as follows :-
"12. In my view, mere use of firearm to cause injury which in
the present case has itself not been proved beyond reasonable
doubt, does not necessarily mean that such case would fall
within the purview of Section 307 IPC. No assumption can be
drawn that by use of firearm in causing injuries on non-vital
part of the body the accused had intention to cause death of
the injured. Intention of the accused has to be proved from
the nature of the injuries actually received, the part of the
body where he caused injuries, number of injuries, the force
which he used in causing such injuries and other surrounding
circumstances of the case. The prosecution is under an
obligation to establish whether or not injury caused by the
accused was sufficient in the ordinary course of nature to
cause death of the injured or was so imminently dangerous
that it would have caused his death. The prosecution is also
required to prove that accused in causing such injury had the
requisite intention and knowledge that he by his act if caused
death of the injured would be guilty of murder. In other words,
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by doing such an act, he would have caused the injury on the
person of the injured which was likely to cause his death.
13. A reference in this connection may be made to the
judgment of this Court in the case of Mani Ram Vs. The
State of Rajasthan, reported in Cr.L.R. (Raj.) 1988, page
252 in which injuries were caused on the non-vital part of the
body of the injured by firearm and were described simple in
nature were not held to have attracted offence u/s. 307 IPC
but the accused in that case was convicted only under Section
324 IPC."
13. Likewise, in another judgment relied upon by learned
counsel for the accused-appellants Pramod Kumar (supra), the
Co-ordinate Bench of this Court has held as follows :-
"42. The contention of the learned counsel for the
accused-appellant has some force and substance that the
accused-appellant did not choose to hit vital part of the
injured persons. Bheema (PW 2), Gopal (PW 4) and Chhitar
(PW 5) and this is sufficient circumstance to show that the
accused-appellant never intended to commit any murder or
cause grievous hurt. To substantiate the aforesaid contention,
learned counsel referred to the injuries on the person of
Bheema, Gopal and Chhitar.
43. A look at the injury reports of these afore-named
three persons shows that the injuries are not on the vital part
of the body. As per the prosecution when the accused
appellant intended to commit murder then there was no
hurdle or hinderance with him in not hitting the vital part of
the injured aforenamed persons and achieving his object.
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14. On perusal of the judgment impugned, it appears that the learned trial court has found proved the charge under Section 307 IPC against the accused-appellants on the ground that fire arm was used by them and this itself is sufficient to show that the accused was intending to make an attempt to commit murder of the injured persons. It appears that the learned trial court has been swayed away by the fact that fire arm was used by the accused persons. But learned trial court has not considered the other relevant circumstances, which were essentially required to be taken into consideration in this regard, as observed in the above referred case of Kala Ram and Ors. and Pramod Kumar (8 of 11) [CRLA-1138/2005] (supra).
15. As pointed out by learned counsel for the accused- appellants, it is also an important factor that no recovery of fire arm was effected from the accused-appellant Kalu. The country made pistol which was allegedly recovered at the instance of accused Jaiprakash vide Ex.-P/7 was made on 20.12.1999, whereas the alleged incident took place on 25.7.1999. Thus, the recovery was made after five months of the incident and that too was not effected in presence of any independent witness. The presence of PW-8 Bhawani Singh, Constable is not beyond the cloud of doubt at the time of recovery. No evidence has been produced to prove the fact that the recovered country made pistol was recently used to make fire from it.
16. In light of the discussion made above, the offence under Section 307 IPC is not found proved beyond reasonable doubt against the accused-appellants in light of the judgments relied upon by learned counsel for the appellants. No such intention or knowledge of the accused-appellants can be gathered from the prosecution evidence that any attempt was made by them to commit murder of any of the injured persons. Looking to the fact that injury sustained by Lada Devi on her left cheek was grievous in nature, the offence proved against the accused- appellants can at the most travel to the extent of Section 325 IPC. In this regard, it is important to note that the compromise had taken place between the rival parties for the offences punishable under Sections 323 & 325 IPC on 24.10.2005 and 25.10.2005.
17. So far as the offence punishable under Section 147 IPC (9 of 11) [CRLA-1138/2005] is concerned, learned counsel for the accused-appellants has stated that the charge-sheet was filed against four persons only before the trial court. As the assembly of five persons was not there, the accused-appellants cannot be convicted for the offences punishable under Section 147 IPC. I am not convinced with the arguments advanced by learned counsel. It is relevant to note in this regard that charge-sheet was filed against juvenile Kailash also, as has been observed by the learned trial court. There is no suspicion on the basis of the prosecution evidence available on record that these persons, five in number, formed an unlawful assembly to commit riot.
18. The plea raised by learned counsel for the accused- appellants that the appellants were not aggressor and exercised their right of private defence does not appear to be convincing. For the sake of arguments, even if, it is assumed that the complainant party was aggressor and tried to forcibly takeover the possession of the land, it did not give any right to the accused- persons to inflict injuries upon them by fire arm when the complainant party was not having such arms. Section 99 of the IPC specifically provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The prosecution evidence clearly shows that the accused-appellants, during the course of scuffle, brought fire arm on the scene of occurrence and also used it. This act was certainly beyond the scope defined in Section 99 of IPC. It is also pertinent to note that no FIR was lodged on behalf of the accused-appellants against the complainant party. It has (10 of 11) [CRLA-1138/2005] not been proved that any injury was caused by the complainant party on the body of the accused-appellants. So, in my considered view, the plea of right of private defence taken by the appellants is not justified. It is also important to note that no such plea was raised by the accused-appellants before the learned trial court. In view of above, the conviction of the accused-appellants for the offence punishable under Section 147 IPC is sustained.
19. Now, adverting to the quantum sentence in respect of the offences punishable under Sections 147 & 325 IPC, as found proved against the accused-appellants, it is worth consideration that the alleged incident has taken place on 25.7.1999 i.e. almost 18 years ago. This fact is also important to be noted that both the parties are in close relation, being real brothers and cousins. They have also entered into compromise for the compoundable offences punishable under Sections 323 & 325 IPC. It appears that as the offences under Sections 147 & 307 IPC were not compoundable, the matter could not be disposed off in totality by way of compromise.
20. On perusal of the warrant of sentence issued by the learned trial court, it appears that accused Kalu Ram Meena had remained in custody for 25 days, from 5.11.1999 to 29.11.1999. Likewise, Jaiprakash @ Lala had remained in custody for 15 days from 20.12.1999 to 4.1.2000. After a lapse of 18 years, it will not be proper to send the accused-appellants behind the bars in their advance age. This also appears justified to keep the spirit of harmonious relation between both the sides in view of the compromise having been entered by them way back in the year (11 of 11) [CRLA-1138/2005] 2005. In the facts and circumstances of the case, I find it appropriate to reduce the sentence awarded to the accused- appellants to the period of custody already undergone by them.
21. In the result, the appeal is partly allowed. The conviction recorded by the learned trial court qua the accused- appellants for the offence under Section 307 IPC is converted into the offence under Section 325 IPC and the conviction for the offence under Section 147 IPC is maintained. The sentence awarded to the accused-appellants for both these offences is reduced to the period of custody already undergone by them.
(DEEPAK MAHESHWARI) J.
Rm/-